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Russia Amending Law on Information to Accelerate Proceedings Against Mirror Websites

Apr 27 2017 - 16:02

On March 15, 2017, a Draft Order amending the current Law on Information, Information Technologies and Protection of Information as well as the Civil Procedure Code, was approved by the Russian State Duma (the lower house of the Russian Federal Assembly) in the first reading.

The main goal of the Draft Order is to simplify and accelerate legal action against “mirror” websites that reproduce in any manner (by copying, translating, redirecting to, etc.) an “original” website or web page comprising pirated content. The amendments stipulated by the Draft Order enable rights holders to obtain a court order against a “mirror” website on the basis of a previous court order against the “original” website or web page, thus relieving copyright owners of the need to prove their rights in separate court proceedings.

The amendments also state that Internet search engines and services must exclude information about or links to “mirror” websites from their search results, and introduce legal liability for those that fail to act accordingly.

The Draft Order, on the other hand, doesn’t require Internet service providers (ISPs) to reveal “mirror” websites on their own initiative. Rather, should the Draft become a law, ISPs would only be obliged to act on specific orders.

The amendments might affect social media websites in the way that social network accounts could be considered “mirror” websites in certain circumstances, which would mean that rights holders would then have two options for acting against infringers – through “mirror” website court orders and through notice-and-takedown procedures. However, it is unlikely that court orders would be applied widely in practice, because rights holders would most likely initially opt for the usual notice-and-takedown procedure, as it is usually applicable without a court ruling and is thus easier and faster. Notice-and-takedown principles are not affected by the proposed amendments at the moment.

While the Draft Order was approved by the State Duma in the first reading, this approval is not the final one and further amendments are possible.

It should be noted that the background of this Draft Order is interesting and that the Order has garnered some negative opinions. Namely, this Order, issued by the Russian government, is in fact only a slightly corrected version of an initial Draft Order published by the Russian Ministry of Communications in April 2016. When it was published, interested parties could submit revision suggestions. The Ministry then published a revised version in August 2016 and in the meantime cancelled the possibility for the public to submit revisions.

Then, in September 2016, the Russian Ministry of Economic Development published a very negative Conclusion regarding the initial Draft Order, admitting the need for better regulation, but criticizing it for:

— Failing to consider most of the comments received during the public discussion, particularly failing to evaluate the effectiveness and cost of the proposed control measures, as there are many ways to overcome them (e.g., by accessing a blocked “mirror” website using publicly available software);

— Potentially harming the Russian segment of the Internet by isolating it from the global network;

— Causing senseless expenses for search engines and services, namely the proposed measure to require them to exclude information about or links to “mirror” websites from search results is unreasonable as “mirror” websites would be out of reach to search engines anyway since they would be blocked;

— Failing to clearly define a “mirror” or “derivative” website;

— Not establishing a clear procedure for determining “mirror” websites and not specifying which authority would be in charge of this procedure;

— Not establishing a clear court procedure related to the proposed measures, in particular, how infringers can file objections.

After the publication of this negative Conclusion, there was no news regarding the initial Order, but the Russian government then issued the Draft Order which was approved in the first reading in March 2017. However, the Order recently received another negative conclusion, this time from the Russian Association of Electronic Communications, a large business association focusing on the information industry.

It remains to be seen how this situation will evolve in the future. After the first reading, there are second and third ones to follow. Then the Draft Order should be approved by the Federation Council (the upper house of the Russian Federal Assembly) and by the President of Russia. Amendments are possible at any stage; however, the latest Russian lawmaking practice shows that ‘possible’ does not mean ‘likely’.